PRO Act Provisions Impose Personal Liability on Officers and Directors

September 10, 2021

As expected, House Democrats are attempting to push through key aspects of their pro-union labor agenda through the budget reconciliation process, including provisions significantly increasing employer liability and creating personal liability for officers and directors for unfair labor practices.

The provisions in recently-released reconciliation bill text from the House Education and Labor Committee were originally proposed in the PRO Act (H.R. 842)—the sweeping labor law rewrite bill which passed the House earlier this year and is pending in the Senate.  These include:

  • Civil penalties for unfair labor practices, up to $50,000, and up to $100,000 for multiple offenses within a five-year period.  Currently, the NLRA provides for make-whole remedies only (such as back pay, reinstatement, etc.).

  • Personal liability for directors and officers for unfair labor practices. 

  • Prohibitions on:

    • Permanently replacing strikers. 

    • Discriminating against any employee who has offered to return to work because the employee participated in a strike. 

    • Locking out or suspending employees “in order to influence the position of such employees” before a strike. 

    • Worker misclassification—communicating or misrepresenting to an employee that such employee is excluded from the definition of employee under the NLRA, intentionally or otherwise.  Currently, misclassification alone is not a violation of the NLRA. 

    • Requiring or coercing employees to attend or participate in an employer’s representation election campaign activities unrelated to the employee’s job duties. 

    • Class action waivers in employment contracts. 

Outlook:  Although these provisions are likely to pass in the House, it remains to be seen whether any of them will be able to pass the Senate's Byrd rule, which requires that anything included in a budget reconciliation bill be sufficiently related to spending.  Earlier this year, for example, a proposal to include a federal minimum wage increase in a budget reconciliation bill failed to pass the Byrd rule.  HR Policy will continue to monitor the budget reconciliation process, advocate against these provisions, and keep members up to date on any further developments.